The Attorney General's decision to try Khalid Shaikh Mohammed and four of his associates in the United States District Court for the Southern District of New York has, unsurprisingly, exposed a difference of opinion between the Left and Right. The Left welcomes the trials as an affirmation of the rule of law and an end to the legal limbo in which most alleged terrorists and enemy combatants have existed for eight years. The Right denounces the trials as weakening America, giving non-citizen terrorists the rights and privileges to which American citizens are entitled in American criminal prosecutions, providing the terrorists a platform from which to publicize their propaganda, and making New York City a target for terrorist attack (as if it hadn't been before).
The arguments on both sides share a common, implicit assumption: that those being brought to trial are, in fact, guilty. To the Left, this means that they cannot possibly be acquitted, and that the trials represent an opportunity for America to reclaim its pre-eminence among civilized nations for comportment with the rule of law. "We are better than the terrorists," this argument runs, "and our system of justice is part of why our brave men and women abroad have risked, and lost, their lives defending our country. If we treat these evil bastards any differently, the terrorists will have changed our society to make it less free, to make it less ordered by law, and they shall have, in some way, won."
To the Right, the certainty that the accused are guilty has a different meaning, which evokes an emotion that often lies not far beneath the surface in cases where most people have convinced themselves that they know who is guilty of a very public and very wicked crime: that the guilty will go free not because the facts don't support their guilt (after all, there are enough alleged facts to have made the public certain of the accused's guilt) but that some namby-pamby, procedural, "hyper-technical," legal obstacle to conviction will result in acquittal. (Conservatives pick and choose when it comes to legal technicalities in criminal trials, though: the vacation on appeal of Oliver North's criminal convictions were quite welcome to conservatives despite the fact that there's very little question that North did the things he was accused of doing; he got off because prosecutors impermissibly used immunized testimony.) But let's not kid ourselves that this emotion is real and widespread: we saw it after O.J. Simpson was acquitted of murder; we see it now where Sam McCroskey is charged with murdering four people in Farmville. "We know they're guilty," this argument runs, "so what's the point of giving them a chance to get off?"
My point here isn't that Khalid Shaikh Mohammed could conceivably be innocent. My point is that both sides implicitly assume his guilt. And that exposes the difference in the psychology of each: the Left is certain he will be convicted--"what New York City jury doesn't convict him?" they assume--and if he is not, it will be the fault of the Bush Administration, which captured and waterboarded him, for creating the legal obstacles to his conviction. (I suppose that some cynical people on the Left consider this a win-win, because, the way they see it, one of two evils will be tried and convicted in SDNY: the person of Khalid Shaikh Mohammed or the detention and interrogation policies of the Bush Administration. On some level, the Left is correct that the Right fears the latter, but the Left overstates it.) The Right is genuinely more afraid of what happens if Mohammed does get off. And it is the very real possibility that he may that the Left understates, and it is the consequence of an acquittal that they ignore.
All those good things that the Left believes a trial and conviction wins for America--the respect abroad, the confidence at home, the affirmation of the rule of law--is lost after an acquittal because there is simply no way the United States releases Khalid Shaikh Mohammed after such an outcome. There will be no triumphant discharge from the custody of the United States; Khalid Shaikh Mohammed never walks down the courthouse steps to be encircled by thrusting media microphones to give an impromptu victory speech. And whatever the United States does to continue his detention from the moment a judgment of acquittal is entered, if it be, is going to be considered (especially abroad) as an act of lawless hypocrisy.
The Left--those who don't cynically embrace the possibility of an acquittal that can be blamed on George W. Bush and his advisers--considers this outcome ridiculously implausible, and those who pause to consider it to be paranoid, but this is not going to be an easy trial. There are a lot of authentic legal issues that have to be disposed of before the allegations are presented to a fact-finder. (If the trial stays in New York, I'm not certain that I would advise a jury trial over a bench trial. And the question of whether the trial does stay in New York, if raised in a motion for transfer or change of venue, is a tiny question, comparatively speaking, when one considers the much larger ones these cases will present.) One thing, in my opinion, is certain: I feel sorry for the district judge who is assigned this case. The presiding judge is going to have hanging over his (or her) head the weight of public anger if he decides any of the potentially dispositive issues in favor of the defendants, regardless of the legal merits of their arguments.
And that's the real reason the Left should be a lot more tentative about this decision in favor of a criminal trial than they have been: there's the opportunity for a hell of a lot of bad case law to come out of these trials because of the notoriety of defendants and their alleged crimes. It is going to be very difficult for the trial judge, or the appellate courts upon review, to decide potentially dispositive arguments in the defendants' favor. (On that count, the Left is probably right: what federal judge lets these defendants off?) But that could create a lot of precedent with serious consequences for later trials, both of alleged terrorists and of more mundane criminals.
(Both sides deftly avoided the risks of posing difficult questions to Judge Ellis when John Walker Lindh was charged criminally: they pled him out. I don't think that can happen in these cases, despite the potential risk of adverse rulings to both sides, because the Justice Department cannot take the political hit of pleading any of these cases out: they're too high profile and, in the Right's view, should never have been pursued in the civilian system to begin with.)
Finally, there's the question of timing. I simply don't see how these cases are finalized before the 2010 mid-term elections. I don't even see how the prosecution can get through all the pre-trial motions before then. That gives the Right roughly a year to criticize the decision, using each set back or postponement to fuel the fire of public disapproval. In fact, I doubt the appeals will be through before the 2012 election, if there are convictions. So this decision, with all of its potentially politically-fatal outcomes, pervades the remainder of President Obama's current term.
So, in reality, trying Khalid Shaikh Mohammed and his friends is much closer to a lose-lose for the Left than anything else. I think they should be slightly less irrationally exuberant.
The impropriety of Tommy Norment
The Virginian-Pilot reports that Senate Republican Leader Tommy Norment has, since July 2008, been working for the College of William and Mary. According to the report, he is paid a $160,000 annual salary and, during the 2009 Session, he requested a $20 million state appropriation to the college. These facts may be of interest to people who are familiar with Delegate Phil Hamilton, another senior Republican budget conferee who reportedly accepted a $40,000 annual salary from a subsidiary that Old Dominion University created after Hamilton secured a $500,000 state appropriation for it. Some will be happy to draw parallels between these two situations, but that is not my purpose here. Rather, I raise a point that the Virginian-Pilot did not address (and wonder why they haven't addressed it, and urge them to augment their investigation). The point arises from the uniqueness of the fact that Norment, unlike Hamilton, is a lawyer and that he is providing legal advice to the college.
(The college happily concedes that Norment provides legal advice to the college:
Moreover, the college includes "legal counselor" among his titles in the faculty/staff directory.)
President Reveley sounds like a man proud of a frugal bargain: he's gotten a professor and an attorney for one low price. And the fact that Norment's salary seems market rate for a law professor, and that Norment has actually done work to earn it, does help distinguish his case from that of Hamilton. In fact, that may have impelled Reveley to disclose the legal representation--it makes Norment's employment look like a fair deal, rather than some shady, back alley quid pro quo. But, as I said, whether the deal is fair or not may differentiate Norment from Hamilton, but it's not what I'm interested in. (His partisan and factional adversaries will gleefully scrutinize that aspect, whether it has merit or not.)
As the Virginian-Pilot reports, the college is represented by the Office of the Attorney General. The Attorney General's duty to represent the college is conferred by statute, which makes his representation exclusive:
Code § 2.2-507(A) (emphasis added).
The use of outside counsel is strictly limited:
Code § 2.2-510 (emphasis added).
So it appears that Norment is prohibited by law from providing the college legal advice--and for the college to solicit or receive it from him. (That is not to say that doing so is criminal, only that it appears to be illegal.) Unless the Governor or Attorney General authorizes Norment to provide the college legal advice. And the Virginian-Pilot does not say whether either of them has; it only says that Norment sought, and then-Attorney General Bob McDonnell provided, an official opinion relating to the possibility of any conflict of interest between Norment's legislative role and his professorial role:
But where is the authorization required by Code § 2.2-510 to allow the college to receive legal advice from outside the Office of the Attorney General? That document would not be privileged; it would not contain legal advice either to Norment (a client of the OAG in his official capacity as a member of the General Assembly) or to the college. What was the basis for invoking the exception? Did the Governor decide McDonnell was "unable to render such service?" Was it "impracticable or uneconomical for the Attorney General to render such service?" Was there a conflict of interest between the OAG and the college?
Now any lawyer could have fallen into this predicament; the impropriety here is separate and independent from Norment's elective office. (This post is purposefully not entitled "The impropriety of Senator Tommy Norment.") But I'd wager that everyone was so preoccupied with avoiding the appearance of graft that they forgot to even consider whether Norment could lawfully do what he is doing. And that's why legislators shouldn't just avoid conflicts of interest; they should avoid undertakings that even hint of the appearance of a conflict of interest.
(Link to Virginian-Pilot via Vivian Paige.)
Update: The Virginian-Pilot has run a new story reporting that then-Attorney General McDonnell's opinion reminded Norment that only the OAG could provide the college legal advice, and Norment disavowed any intention to do so. If that's the case, then the only conflict here is between the college's impression of Norment's job and Norment's own impression--and the college is "back[ing] off" its earlier statement.
I'm still skeptical of any legislator's employment by a state or local government agency. I don't think any legislator should be participating in budget decisions that affect his other employer and I doubt that holding two government jobs is what Jefferson had in mind when he referred to a part-time, citizen legislature. But it doesn't look like Norment's conduct here violated any commonly held sense of propriety after all. That was an open question after the Virginian-Pilot's original story, and I am glad it has been cleared up.
Posted at 08:08 PM in Ethics, Law & Practice, News Commentary, Politics: Virginia | Permalink | Comments (3) | TrackBack (0)